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10 U.S. Code § 4902 - Department of Defense Mentor-Protege Program

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(a) Establishment of Program.—

The Secretary of Defense shall establish a program to be known as the “Mentor-Protege Program”.

(b) Purpose.—The purpose of the program is to provide incentives for major Department of Defense contractors to furnish disadvantaged small business concerns with assistance designed to—

(1)

enhance the capabilities of disadvantaged small business concerns to perform as subcontractors and suppliers under Department of Defense contracts and other contracts and subcontracts; and

(2)

increase the participation of such business concerns as subcontractors and suppliers under Department of Defense contracts, other Federal Government contracts, and commercial contracts.

(1)

A business concern meeting the eligibility requirements set out in subsection (d) may enter into agreements under subsection (e) and furnish assistance to disadvantaged small business concerns upon making application to the Secretary of Defense and being approved for participation in the program by the Secretary. A business concern participating in the program pursuant to such an approval shall be known, for the purposes of the program, as a “mentor firm”.

(2)

A disadvantaged small business concern eligible for the award of Federal contracts may obtain assistance from a mentor firm upon entering into an agreement with the mentor firm as provided in subsection (e). A disadvantaged small business concern may not be a party to more than one agreement concurrently, and the authority to enter into agreements under subsection (e) shall only be available to such concern during the 5-year period beginning on the date such concern enters into the first such agreement. A disadvantaged small business concern receiving such assistance shall be known, for the purposes of the program, as a “protege firm”.

(3)

In entering into an agreement pursuant to subsection (e), a mentor firm may rely in good faith on a written representation of a business concern that such business concern is a disadvantaged small business concern. The Small Business Administration shall determine the status of such business concern as a disadvantaged small business concern in the event of a protest regarding the status of such business concern. If at any time the business concern is determined by the Small Business Administration not to be a disadvantaged small business concern, assistance furnished such business concern by the mentor firm after the date of the determination may not be considered assistance furnished under the program.

(d) Mentor Firm Eligibility.—

(1) Subject to subsection (c)(1), a mentor firm may enter into an agreement with one or more protege firms under subsection (e) and provide assistance under the program pursuant to that agreement if the mentor firm—

(A)

is eligible for award of Federal contracts; and

(B) demonstrates that it—

(i)

is qualified to provide assistance that will contribute to the purpose of the program;

(ii)

is of good financial health and character and does not appear on a Federal list of debarred or suspended contractors; and

(iii) can impart value to a protege firm because of experience gained as a Department of Defense contractor or through knowledge of general business operations and government contracting, as demonstrated by evidence that—

(I)

during the fiscal year preceding the fiscal year in which the mentor firm enters into the agreement, the total amount of the Department of Defense contracts awarded such mentor firm and the subcontracts awarded such mentor firm under Department of Defense contracts was equal to or greater than $25,000,000; or

(II)

the mentor firm demonstrates the capability to assist in the development of protege firms, and is approved by the Secretary of Defense pursuant to criteria specified in the regulations prescribed pursuant to subsection (j).

(2)

A mentor firm may not enter into an agreement with a protege firm if the Administrator of the Small Business Administration has made a determination finding affiliation between the mentor firm and the protege firm.

(3)

If the Administrator of the Small Business Administration has not made such a determination and if the Secretary has reason to believe (based on the regulations promulgated by the Administrator regarding affiliation) that the mentor firm is affiliated with the protege firm, the Secretary shall request a determination regarding affiliation from the Administrator of the Small Business Administration.

(e) Mentor-Protege Agreement.—Before providing assistance to a protege firm under the program, a mentor firm shall enter into a mentor-protege agreement with the protege firm regarding the assistance to be provided by the mentor firm. The agreement shall include the following:

(1) A developmental program for the protege firm, in such detail as may be reasonable, including—

(A)

factors to assess the protege firm’s developmental progress under the program;

(B)

a description of the quantitative and qualitative benefits to the Department of Defense from the agreement, if applicable;

(C)

goals for additional awards that protege [1] firm can compete for outside the Mentor-Protege Program; and

(D)

the assistance the mentor firm will provide to the protege firm in understanding contract regulations of the Federal Government and the Department of Defense (including the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement) after award of a subcontract under this section, if applicable.

(2)

A program participation term for any period of not more than three years, except that the term may be a period of up to five years if the Secretary of Defense determines in writing that unusual circumstances justify a program participation term in excess of three years.

(3)

Procedures for the protege firm to terminate the agreement voluntarily and for the mentor firm to terminate the agreement for cause.

(f) Forms of Assistance.—A mentor firm may provide a protege firm the following:

(1) Assistance, by using mentor firm personnel, in—

(A)

general business management, including organizational management, financial management, and personnel management, marketing, and overall business planning;

(B)

engineering and technical matters such as production, inventory control, manufacturing, test and evaluation, and quality assurance; and

(C)

any other assistance designed to develop the capabilities of the protege firm under the developmental program referred to in subsection (e).

(2)

Award of subcontracts on a noncompetitive basis to the protege firm under the Department of Defense or other contracts.

(3)

Payment of progress payments for performance of the protege firm under such a subcontract in amounts as provided for in the subcontract, but in no event may any such progress payment exceed 100 percent of the costs incurred by the protege firm for the performance.

(4)

Advance payments under such subcontracts.

(5)

Loans.

(6) Assistance obtained by the mentor firm for the protege firm from one or more of the following—

(A)

small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);

(B)

entities providing procurement technical assistance pursuant to chapter 388 of this title;

(C)

a historically Black college or university or a minority institution of higher education; or

(D)

women’s business centers described in section 29 of the Small Business Act (15 U.S.C. 656).

(g) Incentives for Mentor Firms.—

(1)

The Secretary of Defense may provide to a mentor firm reimbursement for the total amount of any progress payment or advance payment made under the program by the mentor firm to a protege firm in connection with a Department of Defense contract awarded the mentor firm.

(2)

(A)

The Secretary of Defense may provide to a mentor firm reimbursement for the costs of the assistance furnished to a protege firm pursuant to paragraphs (1) and (6) of subsection (f) (except as provided in subparagraph (D)) as provided for in a line item in a Department of Defense contract under which the mentor firm is furnishing products or services to the Department, subject to a maximum amount of reimbursement specified in such contract, except that this sentence does not apply in a case in which the Secretary of Defense determines in writing that unusual circumstances justify reimbursement using a separate contract.

(B)

The determinations made in annual performance reviews of a mentor firm’s mentor-protege agreement shall be a major factor in the determinations of amounts of reimbursement, if any, that the mentor firm is eligible to receive in the remaining years of the program participation term under the agreement.

(C)

The total amount reimbursed under this paragraph to a mentor firm for costs of assistance furnished in a fiscal year to a protege firm may not exceed $1,000,000, except in a case in which the Secretary of Defense determines in writing that unusual circumstances justify a reimbursement of a higher amount.

(D)

The Secretary may not reimburse any fee assessed by the mentor firm for services provided to the protege firm pursuant to subsection (f)(6) or for business development expenses incurred by the mentor firm under a contract awarded to the mentor firm while participating in a joint venture with the protege firm.

(3)

(A)

Costs incurred by a mentor firm in providing assistance to a protege firm that are not reimbursed pursuant to paragraph (2) shall be recognized as credit in lieu of subcontract awards for purposes of determining whether the mentor firm attains a subcontracting participation goal applicable to such mentor firm under a Department of Defense contract, under a contract with another executive agency, or under a divisional or company-wide subcontracting plan negotiated with the Department of Defense or another executive agency.

(B) The amount of the credit given a mentor firm for any such unreimbursed costs shall be equal to—

(i)

four times the total amount of such costs attributable to assistance provided by entities described in subsection (f)(6);

(ii)

three times the total amount of such costs attributable to assistance furnished by the mentor firm’s employees; and

(iii)

two times the total amount of any other such costs.

(C)

Under regulations prescribed pursuant to subsection (j), the Secretary of Defense shall adjust the amount of credit given a mentor firm pursuant to subparagraphs (A) and (B) if the Secretary determines that the firm’s performance regarding the award of subcontracts to disadvantaged small business concerns has declined without justifiable cause.

(4) A mentor firm shall receive credit toward the attainment of a subcontracting participation goal applicable to such mentor firm for each subcontract for a product or service awarded under such contract by a mentor firm to a business concern that, except for its size, would be a small business concern owned and controlled by socially and economically disadvantaged individuals, but only if—

(A)

the size of such business concern is not more than two times the maximum size specified by the Administrator of the Small Business Administration for purposes of determining whether a business concern furnishing such product or service is a small business concern; and

(B)

the business concern formerly had a mentor-protege agreement with such mentor firm that was not terminated for cause.

(h) Relationship to Small Business Act.—

(1)

For purposes of the Small Business Act (15 U.S.C. 631 et seq.), no determination of affiliation or control (either direct or indirect) may be found between a protege firm and its mentor firm on the basis that the mentor firm has agreed to furnish (or has furnished) to its protege firm pursuant to a mentor-protege agreement any form of developmental assistance described in subsection (f).

(2)

Notwithstanding section 8 of the Small Business Act (15 U.S.C. 637), the Small Business Administration may not determine a disadvantaged small business concern to be ineligible to receive any assistance authorized under the Small Business Act on the basis that such business concern has participated in the Mentor-Protege Program or has received assistance pursuant to any developmental assistance agreement authorized under such program.

(3)

The Small Business Administration may not require a firm that is entering into, or has entered into, an agreement under subsection (e) as a protege firm to submit the agreement, or any other document required by the Secretary of Defense in the administration of the Mentor-Protege Program, to the Small Business Administration for review, approval, or any other purpose.

(i) Participation in Mentor-Protege Program not To Be a Condition for Award of a Contract or Subcontract.—

A mentor firm may not require a business concern to enter into an agreement with the mentor firm pursuant to subsection (e) as a condition for being awarded a contract by the mentor firm, including a subcontract under a contract awarded to the mentor firm.

(j) Regulations.—

The Secretary of Defense shall prescribe regulations to carry out the Mentor-Protege Program. Such regulations shall include the requirements set forth in section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and shall prescribe procedures by which the parties may terminate participation in the program. The Department of Defense policy regarding the Mentor-Protege Program shall be published and maintained as an appendix to the Department of Defense Supplement to the Federal Acquisition Regulation.

(k) Report by Mentor Firms.—To comply with section 8(d)(7) of the Small Business Act (15 U.S.C. 637(d)(7)), each mentor firm shall submit a report to the Secretary not less than once each fiscal year that includes, for the preceding fiscal year—

(1)

all technical or management assistance provided by mentor firm personnel for the purposes described in subsection (f)(1);

(2)

any new awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;

(3)

any extensions, increases in the scope of work, or additional payments not previously reported for prior awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;

(4)

the amount of any payment of progress payments or advance payments made to the protege firm for performance under any subcontract made under the Mentor-Protege Program;

(5)

any loans made by mentor ¹ firm to the protege firm;

(6)

all Federal contracts awarded to the mentor firm and the protege firm as a joint venture, designating whether the award was a restricted competition or a full and open competition;

(7) any assistance obtained by the mentor firm for the protege firm from one or more—

(A)

small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);

(B)

entities providing procurement technical assistance pursuant to chapter 388 of this title; or

(C)

historically Black colleges or universities or minority institutions of higher education;

(8)

whether there have been any changes to the terms of the mentor-protege agreement; and

(9)

a narrative describing the success assistance provided under subsection (f) has had in addressing the developmental needs of the protege firm, the impact on Department of Defense contracts, and addressing any problems encountered.

(l) Review of Report by the Office of Small Business Programs.—

The Office of Small Business Programs of the Department of Defense shall review the report required by subsection (k) and, if the Office finds that the mentor-protege agreement is not furthering the purpose of the Mentor-Protege Program, decide not to approve any continuation of the agreement.

(m) Annual Collection of Performance Data.—The Director of the Office of Small Business Programs shall—

(1)

maintain outcome-based performance goals and annually collect data through an automated information system (if practicable) assessing such goals; and

(2)

conduct an independent review of the Mentor-Protege Program established under this section at least once every three years.

(n) Definitions.—In this section:

(1)

The term “affiliation”, with respect to a relationship between a mentor firm and a protege firm, means a relationship described under section 121.103 of title 13, Code of Federal Regulations (or any successor regulation).

(2) The term “disadvantaged small business concern” means a firm that is not more than the size standard corresponding to its primary North American Industry Classification System code, is not owned or managed by individuals or entities that directly or indirectly have stock options or convertible securities in the mentor firm, and is—

(A)

a small business concern owned and controlled by socially and economically disadvantaged individuals;

(B)

a business entity owned and controlled by an Indian tribe as defined by section 8(a)(13) of the Small Business Act (15 U.S.C. 637(a)(13));

(C)

a business entity owned and controlled by a Native Hawaiian Organization as defined by section 8(a)(15) of the Small Business Act (15 U.S.C. 637(a)(15));

(D)

a qualified organization employing severely disabled individuals;

(E)

a small business concern owned and controlled by women, as defined in section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D));

(F)

a small business concern owned and controlled by service–disabled veterans (as defined in section 8(d)(3) of the Small Business Act (15 U.S.C. 637(d)(3)));

(G)

a qualified HUBZone small business concern (as defined in section 31(b) of the Small Business Act (15 U.S.C. 657a(b))); or

(H) a small business concern that—

(i)

is a nontraditional defense contractor, as such term is defined in section 3014 of this title; or

(ii)

currently provides goods or services in the private sector that are critical to enhancing the capabilities of the defense supplier base and fulfilling key Department of Defense needs.

(3)

The term “historically Black college and university” means any of the historically Black colleges and universities referred to in section 2323 of this title, as in effect on March 1, 2018.

(4)

The term “minority institution of higher education” means an institution of higher education with a student body that reflects the composition specified in section 312(b)(3), (4), and (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).[2]

(5) The term “qualified organization employing the severely disabled” means a business entity operated on a for-profit or nonprofit basis that—

(A)

uses rehabilitative engineering to provide employment opportunities for severely disabled individuals and integrates severely disabled individuals into its workforce;

(B)

employs severely disabled individuals at a rate that averages not less than 20 percent of its total workforce;

(C)

employs each severely disabled individual in its workforce generally on the basis of 40 hours per week; and

(D)

pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) ² to those employees who are severely disabled individuals.

(6)

The term “severely disabled individual” means an individual who is blind (as defined in section 8501 of title 41) or a severely disabled individual (as defined in such section).

(7)

The term “small business concern” has the meaning given such term under section 3 of the Small Business Act (15 U.S.C. 632).

(8)

The term “small business concern owned and controlled by socially and economically disadvantaged individuals” has the meaning given such term in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)).

(9)

The term “subcontracting participation goal”, with respect to a Department of Defense contract, means a goal for the extent of the participation by disadvantaged small business concerns in the subcontracts awarded under such contract, as established pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)).

(Added and amended Pub. L. 117–263, div. A, title VIII, § 856(a), (b), Dec. 23, 2022, 136 Stat. 2723, 2724.)

[1]  So in original. Probably should be preceded by “the”.

[2]  See References in Text note below.

Editorial Notes

References in Text

Section 312 of the Higher Education Act of 1965, referred to in subsec. (n)(4), is section 312 of Pub. L. 89–329, title III, as added Pub. L. 99–498, title III, §301(a), Oct. 17, 1986, 100 Stat. 1292, which is classified to section 1058 of Title 20, Education. Pars. (3) to (5) of subsec. (b) of such section were repealed by Pub. L. 102–325, title III, §302(a)(3), July 23, 1992, 106 Stat. 472. See 1992 Amendment notes under section 1058 of Title 20.

Section 6 of the Fair Labor Standards Act, referred to in subsec. (n)(5)(D), probably means section 6 of the Fair Labor Standards Act of 1938, act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified to section 206 of Title 29, Labor.

Codification

Amendments

2022—Pub. L. 117–263, § 856(b)(1), substituted “Department of Defense Mentor-Protege” for “Mentor-Protege Pilot” in section catchline.

Pub. L. 117–263, § 856(a), transferred section 831 of Pub. L. 101–510 to this subchapter and renumbered it as this section. See Codification note above.

Subsec. (a). Pub. L. 117–263, § 856(b)(3), struck out “pilot” before “program to”.

Pub. L. 117–263, § 856(b)(2), struck out “Pilot” before “Program” in heading.

Subsec. (c)(1). Pub. L. 117–263, § 856(b)(3), struck out “pilot” after “in the” in two places.

Subsec. (d)(1)(B)(iii)(I). Pub. L. 117–263, § 856(b)(4)(A), substituted “$25,000,000” for “$100,000,000”.

Subsec. (d)(1)(B)(iii)(II). Pub. L. 117–263, § 856(b)(4)(B), substituted “subsection (j)” for “subsection (k)”.

Subsec. (e)(2). Pub. L. 117–263, § 856(b)(5), substituted “three years” for “two years” in two places.

Subsec. (f)(1)(B). Pub. L. 117–263, § 856(b)(6)(A), inserted “manufacturing, test and evaluation,” after “inventory control,”.

Subsec. (f)(6)(B). Pub. L. 117–263, § 856(b)(6)(B), substituted “pursuant to chapter 388 of this title;” for “pursuant to chapter 142 of title 10, United States Code;”.

Subsec. (g)(3)(C). Pub. L. 117–263, § 856(b)(7), substituted “subsection (j)” for “subsection (k)”.

Subsec. (j). Pub. L. 117–263, § 856(b)(11), struck out “pilot” before “Mentor-Protege” in two places and “The Secretary shall publish the proposed regulations not later than the date 180 days after the date of the enactment of this Act. The Secretary shall promulgate the final regulations not later than the date 270 days after the date of the enactment of this Act.” after “participation in the program.”, and substituted “by which the parties” for “by which mentor firms”.

Pub. L. 117–263, § 856(b)(8), (9), redesignated subsec. (k) as (j) and struck out former subsec. (j). Text read as follows:

“(1) No mentor-protege agreement may be entered into under subsection (e) after September 30, 2024.

“(2) No reimbursement may be paid, and no credit toward the attainment of a subcontracting goal may be granted, under subsection (g) for any cost incurred after September 30, 2026.”

Subsec. (k). Pub. L. 117–263, § 856(b)(9), redesignated subsec. (l) as (k). Former subsec. (k) redesignated (j).

Subsec. (k)(7)(B). Pub. L. 117–263, § 856(b)(12), substituted “pursuant to chapter 388 of this title; or” for “pursuant to chapter 142 of title 10, United States Code; or”.

Subsec. (l). Pub. L. 117–263, § 856(b)(13), substituted “subsection (k)” for “subsection (l)”.

Pub. L. 117–263, § 856(b)(9), redesignated subsec. (m) as (l). Former subsec. (l) redesignated (k).

Subsec. (m). Pub. L. 117–263, § 856(b)(14), added subsec. (m). Former subsec. (m) redesignated (l).

Subsec. (n). Pub. L. 117–263, § 856(b)(15), amended subsec. (n) generally. Prior to amendment, subsec. (n) defined terms for this section.

Pub. L. 117–263, § 856(b)(8), (10), redesignated subsec. (o) as (n) and struck out former subsec. (n). Text read as follows: “The Office of Small Business Programs of the Department of Defense shall—

“(1) establish performance goals consistent with the stated purpose of the Mentor-Protege Program and outcome-based metrics to measure progress in meeting those goals; and

“(2) submit to the congressional defense committees, not later than February 1, 2020, a report on progress made toward implementing these performance goals and metrics, based on periodic reviews of the procedures used to approve mentor-protege agreements.”

Subsec. (o). Pub. L. 117–263, § 856(b)(10), redesignated subsec. (o) as (n).

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–263, div. A, title VIII, § 856(g), Dec. 23, 2022, 136 Stat. 2727, provided that:

“The amendments made by this section [enacting and amending this section] shall not apply with respect to any agreement entered into under the program as established under section 831 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1607) before the date of the enactment of this Act [Dec. 23, 2022].”

Regulations

Pub. L. 117–263, div. A, title VIII, § 856(f), Dec. 23, 2022, 136 Stat. 2727, provided that:

“Not later than December 31, 2023, the Secretary of Defense shall issue regulations for carrying out section 4902 of title 10, United States Code, as amended by this section.”

Protege Technical Reimbursement Pilot Program

Pub. L. 117–263, div. A, title VIII, § 856(d), Dec. 23, 2022, 136 Stat. 2726, provided that:

“(1) In general.—

Not later than July 1, 2023, the Director of the Office of Small Business Programs of the Department of Defense (as appointed pursuant to section 144 of title 10, United States Code) shall establish a pilot program under which a protege firm may receive up to 25 percent of the reimbursement for which the mentor firm of such protege firm is eligible under the Mentor-Protege Program for a covered activity described in paragraph (2).

“(2) Activity described.—

A covered activity under this paragraph is an engineering, software development, or manufacturing customization that the protege firm implements in order to ensure that a technology developed by the protege firm will be ready for integration with a program or system of the Department of Defense.

“(3) Definitions.—In this subsection:

“(A)

The terms ‘mentor firm’, ‘protege firm’ have the meanings given under section 4902 of title 10, United States Code, as amended by this section.

“(B)

The term ‘Mentor-Protege Program’ means the Mentor-Protege Program established under section 4902 of title 10, United States Code, as amended by this section.

“(4) Termination.—

The pilot program established under paragraph (1) shall terminate on the date that is five years after the date on which the pilot program is established.”